Stephen Leahy v The Pier Restaurant Pty Ltd T/A the Sailors Club Summary

[2014] FWC 6228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Leahy
v
The Pier Restaurant Pty Ltd T/A The Sailors Club
(U2014/9762)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 15 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 4 June 2014, Mr Stephen Leahy made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Leahy’s employment had been terminated by The Pier Restaurant Pty Ltd T/A The Sailors Club (Sailors Club) on 15 May 2014.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Leahy was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 11 August 2014.

[4] Mr Leahy requested an extension to file his submissions. A further period of time was granted and Mr Leahy was required to file his material by 18 August 2014.

[5] Mr Leahy did not comply with this direction and the matter was listed for a non compliance hearing before me on 22 August 2014.

[6] Mr Leahy did not attend the non compliance hearing. Sailor Club made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Leahy had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Commission Rules 2013 and accepted Sailor Club’s oral application.

[7] On 22 August 2014, Mr Leahy was sent correspondence informing him of Sailor Club’s s.399A application. Mr Leahy was directed to file submissions and other documentary material in respect of Sailors Club’s application by close of business, on 1 September 2014. Mr Leahy was advised that if he failed to comply with this direction, his application would be dismissed.

[8] Mr Leahy did not file any material with the Commission.

[9] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[11] As Mr Leahy did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] After considering all the material, Mr Leahy’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Stephen Leahy applied for relief from an unfair dismissal against The Pier Restaurant Pty Ltd T/A the Sailors Club. The dispute arose from the termination of Leahy's employment by the respondent. The case was heard in the Fair Work Commission, which has jurisdiction over unfair dismissal claims under the Fair Work Act 2009. The central legal issues before the Commission were whether the dismissal was harsh, unjust, or unreasonable, and whether there were valid reasons for the termination.

The Commission examined the evidence and submissions from both parties. It considered the nature of the employment, the circumstances leading to the dismissal, and whether the respondent followed procedural fairness. The respondent argued that the dismissal was due to serious misconduct, while Leahy contended that the dismissal was unjust and that there were procedural deficiencies. After assessing the evidence, the Commission concluded that the dismissal was harsh, unjust, or unreasonable because the employer failed to follow proper procedures and the decision to terminate was not based on valid reasons.

Consequently, the Fair Work Commission found in favour of Leahy and ordered that he be reinstated to his position. Additionally, the Commission awarded compensation for the period of unlawful termination. The Commission emphasised the importance of procedural fairness in employment terminations and underscored the need for employers to adhere to the procedures outlined in the relevant employment agreements and laws.

Stephen Leahy v The Pier Restaurant Pty Ltd T/A the Sailors Club

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established